Regis Corp. v. Fusco Corp., 86-34

• Decision Date: 20 August 1986
• Docket Number: No. 86-34,86-34
• Citation: 496 So.2d 833,11 Fla. L. Weekly 1855
• Parties: 11 Fla. L. Weekly 1855 REGIS CORPORATION, d/b/a Regis Beauty Salons, Appellant, v. The FUSCO CORPORATION, Appellee.
• Court: Florida District Court of Appeals

Page 833

496 So.2d 833

11 Fla. L. Weekly 1855

REGIS CORPORATION, d/b/a Regis Beauty Salons, Appellant, v. The FUSCO CORPORATION, Appellee.

No. 86-34.

District Court of Appeal of Florida Second District.

Aug. 20, 1986.

Rehearing Denied Oct. 22, 1986.

Stanley H. Eleff and Edward C. LaRose of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, Tampa, for appellant.

Joseph R. Park and Andrew J. Rodnite, Jr. of Park and Smith, P.A., Clearwater, for appellee.

RYDER, Acting Chief Judge.

Regis Corporation, the plaintiff at trial, appeals a final order which ruled that they had not sustained monetary damages and were estopped from seeking injunctive relief based upon a commercial lease's exclusivity clause. We reverse.

Appellee Fusco is the landlord of the Sunshine Mall in Clearwater. Appellant Regis is a tenant in the mall. The initial 1967 lease for the premises was between both appellant's and appellee's predecessors in interest. In 1977, Fusco and Regis entered into a lease extension and addendum which incorporated the terms of the original lease. A clause in the original lease grants the lessee the exclusive right to operate a beauty salon within the mall. In May 1982, another grooming salon, Standing Ovation, entered into a lease with Fusco to rent space in the mall.

In October of 1982, Regis filed a complaint alleging that Fusco breached the terms of the lease which had granted Regis the exclusive right to operate a beauty salon at the mall. Regis sought damages and injunctive relief. In its answer, Fusco denied the material allegations of the complaint and affirmatively alleged that Regis had expanded its business operations beyond the scope of the lease's exclusivity clause, which therefore rendered the clause unenforceable. The court bifurcated the issues of liability and damages for trial purposes.

At the June 1984 trial on the issue of liability, the judge heard evidence on the allegation that Fusco breached the exclusivity clause. Eight witnesses testified and the court received twenty-three exhibits into evidence. Approximately one month later, the judge issued his order on liability which ruled in favor of Regis. He found that: (1) Regis had the exclusive right to operate a beauty salon in the mall; (2) Standing Ovation was engaged in the same business as Regis at the mall; (3) Regis and Standing Ovation were in direct and vigorous competition at the mall; (4) Fusco breached the exclusivity clause contained in the Regis lease; and (5) Regis was entitled to injunctive relief. The judge also expressly rejected Fusco's contention that Standing Ovation was licensed as a barber shop, and that the "operation of a beauty shop and a barber shop ... have evolved into something altogether different from that contemplated when the exclusivity provision was granted in the original lease...." Regis' counsel agreed to postpone the entry of injunctive relief against Fusco until the conclusion of the entire case so as to avoid the possibility of having two appeals.

Over one year later, in September of 1985, the successor trial judge conducted a non-jury trial on the damages issue. Three witnesses testified and the court received seven exhibits into evidence. Recognizing that damages could not be proven with exactitude, Regis advanced two alternate theories of calculation of their damages: (1) based on a percentage of Standing Ovation's income at the mall; and (2) based on a projection of Regis' business growth at the mall prior to the opening of Standing Ovation, as compared to its actual gross sales...